Ayah v Kenya Railways Corporation & 2 others (Constitutional Petition E064 of 2025) [2026] KEELC 73 (KLR)
The bottom line
#Kenya's High Court protected a property owner's lease from sale or cancellation but refused to reinstate him, confirming conservatory orders preserve rather than reverse.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case with a likelihood of success warranting a conservatory order
Yes. The Applicant holds a registered lease over the suit property and his eviction without notice raises arguable constitutional questions on due process and property rights; the 1st Respondent's allegations of unlawful lease acquisition remain unproven at the interlocutory stage.
The court noted it is not disputed that the lease is registered in the Petitioner's name, attracting Article 40 protection and Section 26(1) LRA prima facie title. The 1st Respondent asserted the lease breached Sections 13 and 14 of the Kenya Railways Corporation Act and cited Dina Management, but the court held such allegations are unproven and constitute a substantive question for the petition and intended cross-petition. The Applicant need only show arguable constitutional issues, not a case that must succeed. Preservation orders were needed lest the property be transferred and the petition rendered nugatory.
Whether the Applicant could be reinstated to possession of the suit property by way of conservatory order
No. Conservatory orders are preservative, not restorative; the status quo is that the Applicant is out of possession, and reinstatement is a final remedy that cannot issue before a full hearing.
Relying on Wambora and MUHURI, the court held conservatory orders prevent threatened or continuing violations but do not reverse completed acts. Since the 1st Respondent admitted regaining possession on 19th July 2025, the status quo is the Applicant's eviction. Granting reinstatement would resolve contested facts and rights conclusively without evidence, contrary to the caution in Kenya Association of Manufacturers that the court makes no definitive findings at the interlocutory stage. Reinstatement must await the full hearing of the Petition.
Whether prejudice and public interest favoured preservation of the suit property
Yes. The lease has not expired; without a restraining order a third-party interest could arise undermining the Applicant's property rights and rendering the petition nugatory, and the public interest is better served by preserving the suit property pending the Petition.
Applying the CREAW threshold, the court found the Applicant's rights under threat of continued violation since the 1st Respondent had begun demolitions and damage to movable assets. Denying the orders would allow transfer or dealing with the property, defeating the adjudicatory purpose of the court. The court accordingly weighed public interest in favour of preservation until the substantive petition is heard and determined.
Legal principles established
#- Conservatory orders are preservative, not restorative; they preserve the status quo pending trial and do not reverse completed acts such as a completed eviction
- A certificate of title or lease is prima facie evidence of ownership under Section 26(1) of the Land Registration Act and can only be challenged on fraud, misrepresentation or corrupt/illegal acquisition; unproven allegations do not displace it at the interlocutory stage
- At the interlocutory stage the court must avoid definitive findings of fact or law on the dispute, as that duty belongs to the court that hears the substantive petition
Court orders
#- 1.A conservatory order issued restraining the 1st Respondent, whether by its agents, servants or through any party whatsoever, from leasing, selling, disposing of, letting, cancelling and or revoking the Petitioner's leasehold interest over the property known as L.R. No. 3774/774 (I.R. No. 21925/1) pending the hearing and determination of the Petition
- 2.Costs to abide with the outcome of the Petition
- Jurisdiction invoked
- Articles 22 and 23 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayah v Kenya Railways Corporation & 2 others (Constitutional Petition E064 of 2025) [2026] KEELC 73 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/73/eng@2026-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.